Citation Nr: 0201872
Decision Date: 02/27/02 Archive Date: 03/05/02
DOCKET NO. 00-23 964 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in
Albuquerque, New Mexico
THE ISSUE
Entitlement to an effective date earlier than November 17,
1999 for the grant of service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
The veteran is represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C. Kedem, Associate Counsel
INTRODUCTION
The veteran had active military service from November 1951 to
July 1953. This matter comes to the Board of Veterans'
Appeals (Board) from an August 2000 rating decision of the
Department of Veterans Affairs (VA) Albuquerque Regional
Office (RO), which granted service connection for PTSD,
effective November 17, 1999. The veteran believes the
effective date for the grant of service connection for PTSD
should be retroactive to 1972.
REMAND
On his October 2000 substantive appeal, the veteran requested
a personal hearing before a member of the Board at the RO.
Later that month he requested a local hearing before an RO
hearing officer.
In December 2000, the RO mailed him a letter aknowledging his
request for a Travel Board hearing and providing him the
extra options of a Board hearing in Washington, D.C. or a
withdrawal of his hearing request altogether. The available
record, however, contains no subsequent response from the
veteran.
In April 2001, the RO sent him a letter stating that a
hearing had been scheduled for later that month. The record
contains neither a transcript nor any notation indicating
that he failed to appear for the scheduled hearing. The
Board notes that the September 2001 VA Form 8, Certification
of Appeal, indicates that the veteran withdrew his hearing
request; however, such is not apparent from a review of the
current claims file.
The veteran has a due process right to a hearing on appeal if
he expresses a desire to appear in person. See 38 C.F.R.
§ 3.103(c) (2001).
To ensure that VA has met its duty to assist the veteran,
this case is remanded for the following development:
In accordance with appropriate procedures,
the RO should schedule the veteran for a
hearing before a traveling member of the
Board (38 U.S.C.A. § 7107; 38 C.F.R.
§§ 19.76, 20.700 (2001)) or a hearing
officer at the RO, if the veteran prefers.
In the alternative, a signed statement
from the veteran clearly indicating his
desire to withdraw his hearing request
must be obtained and added to the claims
file. 38 C.F.R. §§ 20.702, 20.704 (2001).
The veteran has the right to submit additional evidence and
argument on the matter remanded to the RO. Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board or by the U.S. Court of Appeals for Veterans Claims
(Court) for additional development or other appropriate
action must be handled in an expeditious manner. See The
Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-
446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101
(West Supp. 2001) (Historical and Statutory Notes).
J.F. GOUGH
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2001), only a
decision of the Board is appealable to the Court. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2001).